Brockton holds the cards after power plant rulings

The state's highest court issued a decision that “appears to preclude construction" of a 350-megawatt electricity generating plant on Oak Hill Way in Brockton.

Staff Reporter

BROCKTON – Opponents of a proposed Brockton power plant pegged their hopes to a single, natural chemical compound: H2O.

Without water for cooling, developer Advanced Power cannot move ahead with its plans to build a 350-megawatt, electricity generating plant on Oak Hill Way in Brockton. For years, the company has been fighting with the communities of Brockton and West Bridgewater and local residents over the proposal.

Two decisions by the Massachusetts Supreme Judicial Court simultaneously upheld a state agency’s decision to approve the plant, but also said that the developer cannot use Brockton’s public water supply to cool the facility.

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“It’s huge,” said Justin Kane, an organizer with Stop the Power. “It’s what we’ve been saying for eight years. It affirms everything.”

In one ruling, the court said the state Energy Facilities Siting Board was right to approve the project. That approval, in 2009, included the use of city wastewater rather than drinking water for the facility’s cooling tower.

However, in its other decision Thursday, the supreme court said that the siting board was right to deny Advanced Power the use of drinking water, which the company later proposed to use after officials did not make the city’s wastewater available.

That decision on the water, the court said, “appears to preclude construction of the facility as currently proposed.”

That means if Advanced Power chooses to continue the project, it must reach an agreement with the city on wastewater use, said Sean Kealy, a clinical associate professor of law at Boston University, who specializes in government policy and federal and state constitutional law.

“The bottom line is the power plant developer has to renegotiate with the city to get wastewater,” Kealy said. “The city now holds the cards.”

Advanced Power shifted its proposal to using drinking water for cooling in 2010, after city councilors indicated they would not agree to the use of wastewater.

Following the rulings Thursday, several city councilors said they remain staunchly against the plant and its use of wastewater. All 11 current councilors have said in the past that they oppose the project.

Ward 6 Councilor Michelle DuBois called the water ruling the “death knell of the power plant.”

Councilor-at-Large Moises Rodrigues vowed to fight any further attempts to build the plant.

“Whatever we are allowed under the law, it’s going to be a definite no, no matter what they propose,” Rodrigues said.

Council President Robert Sullivan said the court made the right decision.

“My stance is in opposition and I will not deter from my stance,” Sullivan said.

Yet despite the court’s ruling on water, plant supporters said the fight is not over.

“This is a slam dunk for the power plant people,” Mayor Bill Carpenter said. “This was the city’s last bite at the apple to overturn the plant permit.”

Both Jonathan Winslow, director of development for Advanced Power, and Carpenter said Thursday that the water ruling means re-approaching the use of wastewater.

As leverage, Winslow said, the developer will use a $68 million lawsuit it filed against city officials in 2012. The company alleges that the city itself and several current and former officials violated its due process and civil rights when it was going through the plant permitting process.

That lawsuit is currently before a judge in U.S. District Court in Boston and both parties plan to meet for a status conference Sept. 16.

“We wish and attempted to find common ground but haven’t,” Winslow said. “A wastewater connection is a viable source that we will continue to pursue through the lawsuit.”